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Petitioner: ERIC LANG VS Respondent: JEAN WAUCHOPE LANG
P L D 1956 Privy Council 18
P L D 1956 Privy Council 18
Present : Lords Porter, Oaksey, Reid, Tucker and Asquith of Bishopstone
ERIC LANG-Appellant
versus
JEAN WAUCHOPE LANG-Respondent
Privy Council Appeal No. 26 of 1953, decided on 10th November 1954, from the High Court of Australia.
Divorce-Ground for-Desertion- "Constructive desertion" Factum of desertion-Intention to bring the matrimonial union to an end-Proof of intention-Inferred from conduct, even in the presence of desire that probable result of conduct should not ensue-Marriage Act, 1928 (No. 3726) : [State of Victoria (Australia)].
Where the wife has been brutally ill-used and insulted over a long period and she being the first to leave the matri monial home, she has to found her petition for divorce on desertion: and in order to succeed has to establish what is, described as "constructive desertion".
In such a case the' husband deserts the wife by expelling her or by driving her out.
In ordinary desertion the factum is simple : it is the act of the absconding party in leaving the matrimonial home.
As regards intention, the problem may be approached thus,
Prima facie a man who treats his wife with gross brutality may be presumed to intend the consequences of his acts. Such an inference may indeed be rebutted but if the only, evidence is of continuous cruelty and no rebutting evidence is given, the natural and almost inevitable inference is that the husband intended to drive out the wife. The Court is at least entitled and indeed driven to such an inference unless convincing evidence to the contrary is adduced.
If the husband knows the probable results of his acts and persists in them, In spite of warning that the wife will be compelled to leave the home, and indeed has expressed an intention of continuing this conduct and never indicated any intention of amendment, that is enough, however, passionately he may desire or request that she should remain. His intention is to act as he did, whatever the consequences, though he may hope and desire that they will not produce their probable effect.
To say that it is not enough unless he knows that separa tion must inevitably result from his actions is to ask too much. Men's actions and judgments are not founded upon certainty in most cases certainty is unascertainable-but on probabilities. No doubt a high degree of probability is required but no more.
The parties in this case were married in South Australia on the 8th November 1924. On the 29th October 1951, the w1fe presented a petition to the Supreme Court of Victoria praying for a divorce on the ground that her husband had without just cause or excuse wilfully deserted her and had continued in desertion for three years and upwards.
From the time of the husband's return in 1942 from the Middle East where he had been on active service, there had been a series of constant disturbances and acts of violence on his art towards his wife.
There were slaps and punches which he administered to the petitioner on the face and the body. He struck tier on occasions with a roler and with a cane and with a slipper and did this in the undignified way, on occasion, of placing be, across his knee and administering punishment in that way. There were bruises put upon her body by these means and the bruises on occasions were seen by other people. He twisted her arms behind her back and so caused her pain, and on occasion he so held the twisted arms in a position that continued for nearly an hour, and when the police arrived, on the summons of one of the children, he was still holding his wife's arms in that position. On two occasions at least he dragged her-by the hair into the bathroom and held her under the cold shower. He abused her and he constantly called her a bitch, and there were nightly disturbances created by him, destroying his wife's rest.
This was a series of incidents and a course of conduct which persisted over several years. She told him on a number of occasions that if he continued that conduct she would have to leave as that conduct was affecting her health. And on one occasion she did leave, and left for some little time. On another occasion she left and walked the street for the night so that she might not stop in the house.
She separated from him on two occasions, viz., in 1943 and in July 1948, before they finally parted. On the first occasion she remained away for about two months and was induced to return by promises of amendment, which were, however, promptly and continuously thereafter violated. On some date in July 1948, he treated her with such violence that, not for the first time, the police had to be invoked. She then asked him to leave, and he did : returning, however, on the 11th August. On the 13th August occurred the culminating incident which caused her finally to leave him. The husband professed to have taken advice from a psychiatric friend as to how he could improve his relations with his wife, and to have been advised to try "Caveman stuff".
This suggestion was treated by the husband as a new departure but "Caveman stuff" was not an unfair description for the treatment he had been applying to his wife for years past. However, on the 13th August, he planned and carried out what he referred to as the "rape of Lucrece" ; he "forced sexual intercourse on her in circumstances of calculated and revolting indignity" : and told her that he was going to "use her for the same purpose whenever he wanted to and as often as he wanted to". She then finally left and filed her petition, ignoring a number of letters which he wrote begging her to return but not expressing any intention to treat her differently if she did.
Held, `that such acts justified the wife's withdrawal and that she had been constructively deserted if she had left the house.
Sickert v. Sicken (1899) 278, Edwards v. Edwards (1948) 268, Dickenson v. Dickenson (1890) 62 L T 330, Koch v. Koch (1899) 221, Boyd v. Boyd (1938) 55 T L R 3, Bartholomew v. Bartholomew (1952) 2 All. E R 1035, (1952) T L R 934, Moss v. Moss (1912) 15 C L R 538, Baily v. Baily (1952) ALR 715 Dearman v. Dearman (1916) 21 C. L IJ .64, Bain v. Bain (1923) 33 C L R 31.7, leery v. Deery (1954) Argus L R 269, Hosegood v. Hosegood (1950) 66 T L R (Pt. 1) 738, Buchler v. Buchler 63 T L R 100 ; (1947) 25, Simpson v. Simpson (1951) 320, Pike. v. (1954) 81, n., Farmer v. Farmer (1884) 9 P D 245, Pizzala Pizzala (1899) 68 L J 91 n., (1896) 12 T L R 451, Garcia v. Garcia (1858) 13 r D 216 and Donelly v. Donelly (1939) 61 W L R 577 ref.
James Stirling B. Bullen-Murphy & B. J. Watley for Appellant.
Solicitors: Blyth Dutton Wright & Bennet. J. E. S. Simon, Q. C. and John Latey for Respondent. Solicitors: Devanport Lyons & Barker.
Date of hearing : 19th July 1954.
JUDGMENT
LORD PORTER.--This is an appeal by special leave granted the 28th May 1953, from a judgment dated the 23rd February 1953, of the High Court of Australia. By that judgment the High Court of Australia (Dixon, C. J., Fullagar and Kitto, JJ.) dismissed the appeal of the present appellant from a judgment the Supreme Court of Victoria (Lowe, 3.) whereby it was adjudged that the present respondent should be granted a decree nisi of dissolution of marriage with costs on the ground of the present appellant's desertion.
The parties were married in South Australia on the 8th November 1924. On the 29th October 1951, the wife presented a petition to the Supreme Court of Victoria praying for a divorce on the ground that her husband had without just cause or excuse wilfully deserted her and had continued in desertion for three years and upwards.
The matrimonial law of the State of Victoria differs notably from that of England. The main differences are (1)" that cruelty without more has in Australia never been a ground for divorce a vinculo as it has been in England since 1937 but only for a judicial separation ; (2) that desertion which without more became a ground of divorce in England in 1937, has been such a ground a vinculo in Victoria as long ago as 1890 by provisions which so far as relevant to this case, were re-enacted without alteration by Statutes of 1915 and 1928.
The following are the provisions of the Marriage Act, 1928 (No 3726) of the State of Victoria which govern the relevant transactions :---
"(75) Any married person who at the time of the institution of the suit has been domiciled in Victoria for two years and upwards, may present a petition to the Court praying on one or more of the grounds in this section mentioned that his or her marriage with the Respondent may be dissolved---(a) on the ground that the Respondent has without just cause or excuse willfully deserted the Petitioner and without any such cause or excuse left him or tier continuously so deserted during three years and upwards ; (b) on the ground that the Respondent has during three years, and upwards been an habitual drunkard, and either habitually left his wife without means of support, or habitually been guilty of cruelty towards her . . . . . . (d) on the ground that within one year previously the Respon dent - . . . bas repeatedly . . . . assaulted and cruelly beaten the Petitioner ; . . .
If in the opinion of the Court the Petitioner's own habits or conduct induced or contributed to the wrong complained of . . . such petition may be dismissed."
By section 77 of the same Act, a wife may present a Petition for dissolution of marriage, inter alia, on the grounds of adultery coupled with cruelty and under sections 63 and 64, a decree of judicial separation may be granted, inter alia, on the ground of cruelty. Unless, however, the cruelty can be brought within the' terms of sections 75 (b) or (d) or 77 (set out above), it is not a ground for dissolution of marriage under Victorian Law.
If cruelty had been a sufficient ground for divorce in the State of Victoria, then assuming, as seems to their Lordships very probable, that the wife's health suffered from the treat ment she received, the case would have presented no complications. As it is the wife, who had been brutally ill-used and insulted over a long period, since she was the first to leave the matrimonial home had to found her petition on desertion and in order to succeed had :o establish what is described as "constructive desertion".
At this point, and before proceeding with any summary of the facts, their Lordships think it desirable to make certain general observations about the law (a) of desertion ; (b) of so called "constructive desertion".
Both in England and in Australia, to establish desertion two things must be proved : first certain outward and visible conduct-the "factum" of desertion : secondly the "animus deserendi"-the intention underlying this conduct to bring the matrimonial union to an end.
In ordinary desertion the facturn is simple: it is the act of the absconding party in leaving the matrimonial home. The contest in such a case will be almost entirely as to the "animus". Was the intention of the party leaving the home to break it up for good, or something short of, or different from that ?
Since 1860 in England and for a long time in Australia, it has been recognised that the party truly guilty of disrupting the home is not necessarily or in all cases the party who first leaves it. The party who' stays behind (their Lordships will assume this to be the husband) may be by reason of conduct on his part making it unbearable for a wife with reasonable self respect, or powers of endurance, to stay with him, so that he is the party really responsible for the breakdown of the marriage. He has deserted her by expelling her: by driving her out. In such a case the factum is the course of conduct pursued by the husband something which may be far more complicated than the mere act of leaving the matrimonial home. It is not every course of conduct by the husband causing the wife to leave which is a sufficient factum. A husband's irritating habits' may so get on the wife's nerves that she leaves as a direct consequence of them but she would not be justified in doing so. Such irritating idiosyncrasies are part of the lottery in which every spouse engages on marrying, and taking the partner of the marriage "for better, for worse". The course of conduct-the "factum"-must be grave and convincing.
In the present case there is not the slightest question that the "factum" is sufficient. The facts are not in dispute. There are in effect concurrent findings that the husband grossly ill-used and insulted his wife over a period of five years and gave her ample justification for leaving him.
The, whole and sole question is whether, the wife has proved the necessary animus or intent on the part of the husband. How should that animus be ascertained ? In particular (1) is it enough for her to show a course of conduct on the part of the husband which in the eyes of a reasonable man would by making her life insufferable be calculated to drive the wife out, the husband's actual intention being immaterial on the footing that every man is presumed to intend the natural and probable consequences of his acts ? Or (2) should the objective criterion of the reasonable man's reactions be rejected on the footing that the real question is, did this particular husband (who may not have been reason able) know that his conduct, if persisted in, would in all human probability result in the wife's departure:------it being remembered, it is possible (human nature being what it is) for such knowledge ' on the husband's part to co-exist with a desire that she should stay; since people often desire a thing but deliberately act in a way which makes that desire un realisable. Or again (3) should inferences which would naturally be drawn be wholly disregarded and an intention which would naturally be drawn from the husband's conduct negatived provided there is proved to exist, de facto, on his part a genuine desire (however illogical, or impossible it may be to square such a desire with his conduct) that the matri monial union should continue ? On this view the husband's desire to maintain the home is conclusive whatever his con duct. All three of these views have found expression in the decided cases.
Their Lordships have thought it convenient to state in very general outline the legal issues involved before citing any authorities or concluding their summary of the facts. To this last task they now revert.
The material facts are conveniently summarised in the judgment of the Supreme Court of Victoria by Lowe, J.
"But I take up the story in some detail from the Respon dent's return from the Middle East in 1942. He had been on active service, and that was the time of his return. In a conversation with his -son-and the substance of it was repeated to others--he said that thenceforward he was going to be master; and when the son asked him whether that meant that he was going to knock his mother about he said that was the only thing she understood. From this time on, I find a series of constant disturbances and acts of violence of his part.
There were slaps and punches which he administered to" the Petitioner on the face and the body. He struck her or occasions with a roler and with a cane and with a slipper and did this in the undignified way, on occasion, of placing her across his knee and administering punishment in that way. There were bruises' put upon her body by these means and the bruises on occasions were seen by other people. ' He twisted net arms behind her back and so caused her pain, and on occasion he so held the twisted arms in a position that continued for nearly an hour, and when the police arrived, on the summons of one of the children, he was still holding his wife's arms in that position. On two occasion's at least he dragged her by the hair into the bathroom and held her under the cold shower. He abused her and he constantly called her a bitch, and there were nightly disturbances created by him, destroying his wife's rest.
Now, that is a series of incidents and a course of conduct which persisted over several years. She told him on a number of occasions that if he continued that conduct she would have to leave as that conduct was affecting he health. And on one occasion she did leave, and left foil some little time. I shall deal with that more particularly, but on another occasion she left and walked the street for the night so that she might not stop in the house.
She separated from him on, two occasions, viz., in 1943 and in July 1948, before they finally parted. On the first occasion she remained away for about two months and was induced, to return by promises of amendment, which were, however, promptly and continuously thereafter violated. On some date in July 1948, he treated her with such violence that, not for the first time, the police, had to be invoked. She then asked him to leave, and he did returning, however, on the 11th August. On the 13th August occurred the culminating incident which caused her finally to leave him. The husband professed to have taken advice. from a psychiatric friend as to how he could improve his relations with his wife, and to have been advised to try `Caveman stuff".
It is a little surprising that this suggestion was treated by the husband as a new departure : "Caveman stuff" is not as unfair description for the treatment he had been applying to his wife for years past and which had twice caused her to leave him. However, on the 13th August, he planned and carried out what he referred to as the "rape of Lucrece"; it) the words of the trial Judge's finding he "forced sexual intercourse on her in circumstances of calculated and revolting indignity": and told her that he was going to "use her for the same purpose whenever he wanted to and as often as he wanted to". These last words are important. She then finally left and filed her petition, ignoring a number of letters which he wrote begging her to return but not expressing any intention to treat her differently if she did. Her patience was not unnaturally exhausted and even if he had expressed penitential sentiments it would not have been unreasonable for the wife to doubt their sincerity.
The Australian law as to constructive desertion is principally contained in three or four decisions of the High Court. Before considering these their Lordships would make some general observations.
In the preset case the existence of conduct by the hus band being of sufficient gravity to constitute the necessary factum, the question is what he intended, or must be taken to have intended, while so conducting himself ? Did he intend to bring the matrimonial relations to an end ? Let it be supposed that a husband intentionally persists in conduct which the hypothetical reasonable man would think calculated to cause the wife to leave him, is he necessarily guilty of constructive desertion, notwithstanding that he genuinely desires the marriage to survive ? If so evidence of his consistently expressed desire that the wife should stay with him is irrelevant and inadmissible. The formula, if satisfied, creates an irrebutabre presumption.
In other ' words if a man deliberately makes his wife's life unbearable according to an objective standard, i.e., the reason able man's reactions, is he conclusively presumed to intend to drive her out:--the presumption that a man intends the natural and probable consequences of his acts being treated as irrebuttabie ? This view has been in the ascendant in the leading decisions of the High Court of Australia, though of late traces of a recession from it have been discernible. In England this view finds expression in Sickert v. Sickerl ((1899) 278), Edwards v. Edwards ((1948) 268), and generally in the cases where a husband has installed in the matrimonial home, or refused to expel' from it, or to dismiss from his service a mistress examples of which may be found in Dickenson v. Dickensan ((1890) 62 L T330) and Koch v. Koch ((1899) 221).
The other view, which is embodied in the English decision in. Boyd v. Boyd (11938) 55 T L R 3) and is certain observations in Bartholomew v. Bartholomew ((1952) 2 All. E R 1035, (1952) T L R 934), is that no matter hew reprehensible has been the husband's behaviour, if there is positive and credible evidence negativing any actual intention on his part to end the marriage, the law will not impute such an intention to him.
In Australia on the other hand in moss v. Moss ((1912) 15 C L R 538), on appeal from New South Wales what has been referred to as the objective test of conduct amounting to constructive desertion was laid down in terms so designed as to make the deserter's actual intentions immaterial if the objective test were justified. If the course of conduct is sufficiently blameworthy and prolonged, the case decides that the law will impute to the guilty party an intention to bring the matrimonial union to an end, whatever his actual or professed desire. Overtures for a reconciliation, for instance, or a genuine de facto wish that the wife should stay, will in such a case be overridden by this imputation The gist of the case of Gaily v. Gaily ((1952) A L R 715) decided forty years later, is to affirm what has been called the objective test except where there has been express desertion, and is accurately summarised in the judgment of the Trial Judge Lowe in the following passage :-
"This is a wife's petition to dissolve the marriage on the ground of her husband's desertion. In fact it was she who left the matrimonial home and therefore, the case is one of what has come to be known as constructive desertion. The term has been a good deal criticised, but for my part I must accept it that constructive desertion, if proved, is sufficient ground for the dissolution of the marriage.
The matter has been very recently discussed in the High Court in the case of Baily v. Gaily. It is reported in (1952) A L R 715. That case makes it plain that the test which has to be applied in these cases is one either of actual intention by the husband to bring the matrimonial relation ship to an end or an intention on his part to persist in a course of conduct which any reasonable person would regard as calculated to bring about such a result. It is the second limb of that test which is relied upon' in this case, namely, that tae facts are such as to show an intention on the husband's part to persist in a course of conduct which any reasonable person would regard as calculated to bring about a rupture in the matrimonial relationship."
Dearman v. Dearman ((1916) 21 C L R 264) also an appeal from New South Wales is in line with these decisions, foreshadowing the second limb of the rule laid down in Gaily v. Baily, Bail). v. Bail) ((1923) 33 C L R 317) in substance affirms the same view,; though it is a some what more complex decision, since it touches expressly on the problem created when there is a clash of intentions, or, if that be strictly impossible, a clash of intention with wish or desire, or aim.
Their Lordships will have to return to these among other Australian authorities and to say something about cases decided in England. But before doing so, they think it proper to deal with the' judgment. 1t is unnecessary to analyse the evidence as the findings of fact are not in dispute.
It has been noted that the petition was filed on the 29th October, 1951, and particulars were supplied on the 26th November, 1951. None of the particulars relate to a period earlier than the 11th August, 1948. Yet the whole case was conducted, as regards evidence arid argument, on the footing that the whole of the husband's behaviour from 1943 to 1948 was relevant. This seems to their Lordships an anomalous and regrettable state of affair. However, no objection was raised to tile excursion of the evidence for outside the limits covered by the pleadings, and the lesser evil is to treat the pleadings as amended so as to cover the additional matter.
The judgment of the Supreme Court of Victoria (Lowe, J.) professes to be wholly based on the second limb of the formula in Bally v. Bally. Thus in the Record at line 5, p. 223, he says:
"I have no doubt that the course of conduct which I have described indicates an intention to persist in a course of conduct which any reasonable person would regard as calculated to bring about a rupture of the matrimonial relation, and consequently I think that his conduct does amount to constructive desertion."
It is inherent in the logic of this formula that if the reasonable man would regard the course, of conduct in which the husband intended to persist as calculated to bring the marriage to an end, it is not open to the alleged deserter to give evidence that that was the last thing he actually desired. Yet the logic is not quite rigidly observed for the learned Judge pays regard to the wife's warnings that she would leave the respondent if he persisted, a fact mainly…
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